Granton Stanwood McHenry v. People of the State of California

447 F.2d 470 Granton Stanwood McHENRY, Appellee, v. PEOPLE OF the STATE OF CALIFORNIA, Appellant. No. 24750. United States Court of Appeals, Ninth Circuit. Aug. 24, 1971, Rehearing Denied Sept. 30, 1971. Michael J. Kelly, Deputy Atty. Gen. (argued), Evelle J. Younger, Cal. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for appellant. Raoul D. Kennedy (argued), Oakland, Cal., for appellee. Before ELY, WRIGHT, and TRASK, Circuit Judges. PER CURIAM: 1 McHenry is a California state prisoner. On October 10, 1960, he was convicted on a charge of having violated section 261, subd. 1 of California's Penal Code (statutory rape). He was released on parole on April 25, 1963, and subsequently, on January 28, 1965, was convicted for having violated section 12021 of California's Penal Code (possession of a concealed weapon by a person 'who has been convicted of a felony'). Because of this later conviction, his parole was revoked by the California authorities, and his term of imprisonment on the 1960 offense was refixed at the maximum. 2 After exhausting his state remedies, McHenry filed an application for habeas relief in the District Court. His petition was denied, and…

(dissenting):

Respectfully, I disagree and dissent. This case should not be controlled by Burgett v. Texas, 389 U.S. 109 , 88 S.Ct. 258 , 19 L.Ed.2d 319 (1967) or United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970) but by United States v. Liles, 432 F.2d 18 (9th Cir. 1970).

The defendant in Liles was convicted of a violation of the Omnibus Crime Control and Safe Streets Act of 1968, making it unlawful for anyone convicted of a felony to possess a firearm. Liles had been convicted of a felony in February 1969. In October of that year, he displayed a gun while shopping for a holster, was charged, tried and convicted on February 26, 1970. His earlier felony conviction had been reversed by the Court of Appeals for the Fifth Circuit on the previous day for lack of sufficient evidence.

On appeal from the weapons conviction, Liles argued that Congress intended to punish possession of firearms only where the prior enabling conviction was eventually sustained at the appellate level. We disagreed and said that:

After oral argument, we invited supplemental briefs and a discussion of Liles . The parties have been unable to distinguish it from the case before us, nor can I.

McHenry is a California state prisoner. On October 10, 1960, he was convicted on a charge of having violated section 261, subd. 1 of California’s Penal Code (statutory rape). He was released on parole on April 25, 1963, and subsequently, on January 28, 1965, was convicted for having violated section 12021 of California’s Penal Code (possession of a concealed weapon by a person “who has been convicted of a felony”). Because of this later conviction, his parole was revoked by the California authorities, and his term of imprisonment on the 1960 offense was refixed at the maximum.

After exhausting his state remedies, McHenry filed an application for habeas relief in the District Court. His petition was denied, and he appealed to this court. Pursuant to that appeal, the cause was remanded so that the District Court might conduct an evidentiary hearing on the allegations made by McHenry in his petition. McHenry v. Wilson, 403 F.2d 711 (9th Cir. 1968).

The District Court appointed counsel to represent McHenry, conducted the required evidentiary hearing, and thereupon determined that the 1960 conviction was invalid. This determination was based upon the court’s conclusion that certain…